Fiji Public Service Association v Land Transport Authority [2008] FJAT 11; Award 11 of 2008 (26 March 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 11 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

LAND TRANSPORT AUTHORITY

FPSA: Mr N Tofinga
LTA: Mr S Waqainabete

DECISION

This is a dispute between Fiji Public Service Association (the Association) and Land Transport Authority (the Authority) concerning the dismissal of Rynal Dinesh Prasad (the Grievor).

A trade dispute was reported by the Union on 29 January 2007.

The report was accepted on 16 April 2007 by the Permanent Secretary who referred the Dispute to a Disputes Committee.

Subsequently the Minister authorized the Permanent Secretary to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 6(1) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 19 August 2007 with the following terms of reference:

"- - - the Dispute is over the Union’s claim that the disciplinary process and the dismissal of Mr Rynal Dinesh Prasad were made wrongfully, made unfairly; procedurally unfair; in breach of clauses 8.2.9 and 8.2.10 of the Collective agreement and that Mr Prasad was denied natural justice by the Authority. The Association seeks his immediate re-instatement without any loss of wages and benefits from when the disciplinary action began."

The Dispute was listed for a preliminary hearing on 24 August 2007. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 21 September 2007.

The Union filed its preliminary submissions on 19 September and the Employer did so on 28 September 2007.

The Dispute was subsequently fixed for hearing on 10 December 2007. However by letter dated 5 November 2007 the Association informed the Tribunal that the parties intended to proceed by way of a statement of agreed facts.

As a result the hearing date was vacated and the Dispute was listed for mention on 30 November 2007. However by that date the parties had realized that they were not able to formulate a statement of agreed facts. As a result and at the request of the parties the Dispute was fixed for hearing on 26 February 2008.

The hearing of the Dispute was conducted on 26 February 2008 at Suva. Each party called one witness to give evidence. At the conclusion of the evidence the parties presented oral closing submissions.

At the time of his dismissal the Grievor was employed by the Authority as a Public Service Vehicle (PSV) Officer whose primary task was to undertake searches in respect of applications from customers for PSV permits. He had joined the Authority on 12 August 1996 when it was the Department of Road Transport.

In a memorandum dated 15 July 2005, from the Regional Prosecutor Western an incident involving the Grievor and an allegation of computer fraud was reported to the Regional Manager Western. The allegation concerned the non-payment of wheel tax in respect of vehicle CL 351.

The Regional Manager Western then arranged for the Grievor to be interviewed by Mr S R Naicker on 6 July 2005, the Prosecutor who had prepared the initial report. During the interview the Grievor denied any knowledge of the fraud. However he acknowledged that he went to the Ba Office on a day in December 2004. He admitted that at Ba he asked for a replacement sticker for his vehicle EN 020. He denied making any request for a duplicate certificate for vehicle CL 351.

By memorandum dated 20 July 2005 to the Chief Executive, the Regional Manager Western concluded that there was sufficient evidence to charge the Grievor under clause 8 of the Collective Agreement and that in the meantime the Grievor should be suspended.

By memorandum dated 25 July 2005 the Manager Human Resource (MHR) advised the Grievor that he was suspended on half pay with effect from 27 July 2005 to allow the Authority to undertake further investigations.

Then by memorandum dated 4 August 2005 from MHR the Grievor was informed that he had been charged with a disciplinary offence. Omitting formal and irrelevant parts, the memorandum stated:

"We have a report that on 11 December 2004, the record of Vehicle CL 351 belonging to Forest Enterprises Ltd was tampered with leading to the validation of the period 12 December 2004 to 11 December 2005 using the wheel tax number 147529 for the year 2004. The change was made at about 3.06pm with the use of Sulueti Namatua’s password. On the day the changes were made, while both you and Namatua were at work, Namatua had left work at 12.20pm but there is no record of when you left work.

Our subsequent investigations revealed that on 22 December 2004 you had gone to the Ba Office and requested LTA Officers Uma Devi Dayal and Premila Wati to provide you with duplicate wheel tax sticker for the said vehicle CL 351. You attempted to do this again with Ms Dayal and Ms Wati on 23 December 2004 but failed.

Pursuant to clause 8.2.1 of the Collective Agreement, you are hereby charged for the following disciplinary offence:

CHARGE

COUNT 1

Acting Dishonestly and without integrity: Contrary to Clause 8.1.1 of the Collective Agreement

PARTICULARS OF OFFENCE

Rynal Dinesh Prasad, PSV Officer of Lautoka in the Western Region in the course of employment failed to deal honestly and with integrity when he fraudulently changed the records of Vehicle CL 351 without the collection of the wheel tax amount of $1527.00."

The Grievor was provided with copies of the relevant documents. He was also advised that he was required to inform MHR by 22 August 2005 whether he admitted or denied the charge and to provide any explanation in relation to the alleged offence. He was also informed that he was suspended on half pay with effect from 8 August 2005.

In a very brief response dated 9 August 2005 the Grievor informed MHR that he denied the charge set out in Count 1.

On 25 August 2005 an Independent Inquiry was appointed to establish the truth of the charge and to find facts pursuant to clause 8.2.4 of the Collective Agreement.

By memorandum dated 1 September 2005 from MHR, the Grievor was advised that:

"Further to the discussion at the Independent Inquiry on 1st September 2005 we enclose herewith the amended disciplinary charge which also contains an alternative charge arising from the same facts. You may desire to comment in writing to the amendments or you may reserve the right to respond to any evidence that may be produced now or at a later date.

CHARGE

Acting Dishonestly and Without Integrity: Contrary to Clause 8.1.1 of the Code of Conduct of the Collective Agreement

PARTICULARS OF OFFENCE

RYNAL DINESH PRASAD, PSV Officer on the 11th day of December 2004 in Lautoka in the Western Region, in the course of employment acted dishonestly and without integrity when he fraudulently changed the records of Vehicle CL 351 without the collection of the wheel tax amount of $1527.00.

ALTERNATIVE CHARGE

Improper use of Official Information or of the Employees Duties, Status, Power or Authority in order to gain or seek to gain a Benefit or Advantage for the Employee or anyone else:

Contrary to Clause 8.1.10 of the Code of Conduct in the Collective Agreement.

PARTICULARS OF OFFENCE

RYNAL DINESH PRASAD, on the 22nd of December 2004 in Lautoka at the Western Region, in the course of employment as a PSV Officer made improper use of his duties and Status when he compelled Premila Lal a customer service officer at Ba Land Transport Authority office to print out a duplicate copy of Wheel tax sticker for vehicle No CL 351 under suspicious circumstances.

All documents which were served earlier as disclosures are applicable in respect of the above amendments."

By memorandum dated 26 September 2005 the Grievor was advised that he was to be suspended without salary until a final decision was made. This was apparently due to the delays in the proceedings.

The Report of the Independent Inquiry was dated 21 December 2005. The Report stated that there was insufficient evidence on Count 1 to sustain the charge against the Grievor.

However the Report also stated that there was sufficient evidence on count 2 to sustain the charge. The Independent Inquiry found that the Grievor had "attempted to improperly use his status/power/authority to gain a benefit/advantage for some one else when he asked Premila Lal to issue a duplicate wheel tax for vehicle CL 351.

The Association accepted that the finding itself was certainly open to the Inquirer on the evidence before her. However, the findings of fact did not match the particulars of the Alternative Charge. The particulars of that offence were that the Grievor "compelled" Ms Lal to print a duplicate copy of the wheel tax sticker for vehicle CL 351. The findings of fact made by the Independent Inquirer as stated in her report did not establish the alternative charge. The report did not conclude that the Grievor had compelled either employee at Ba to print out a duplicate sticker for vehicle CL 351.

At the end of her Report, the Independent Inquirer concluded:

"Evidence produced at the inquiry showed that the employee used his power to obtain an advantage for himself. He did this when he paid only $4.00 fees without producing other required documents, however because he was not charged for that I am unable to say or do much on that:".

Although there were what appeared to be two inconsistent findings of fact on page 10 of her report (6th and 8th dot points) the Independent Inquirer did conclude that the Grievor had obtained a duplicate sticker for his vehicle EN 020 at Ba on 22 December 2004.

By memorandum dated 11 January 2006 from MHR the Grievor was advised that he was to be charged with a further disciplinary offence. The memorandum stated :

"Please be advised that the Independent Inquiry has found that you should also be charged for the offence of improper use of duties and status at Ba office in regards to the wheel tax sticker of your own vehicle EN 020.

Pursuant to Clause 8.2.1 of the Disciplinary Procedures contained in the Collective Agreement, you are hereby charged with the following:

Statement of Offence

Improper use of the Employees duties, status, power or authority in order to gain or seek to gain, a benefit or advantage for the employee: Contrary to Clause 8.1.1.0 of the Code of Conduct in the Collective Agreement.

Particulars of Offence

RYNAL DINESH PRASAD on the 22nd of December 2004 in Lautoka at the Western region, in the course of employment as a PSV officer made improper use of your duties and status when you compelled Premila Lal a customer officer at Ba Land Transport Authority office to print out a duplicate copy of Wheel tax sticker for vehicle EN 020 for your own benefit or advantage.

You are therefore required to state in writing within 14 days of receipt of these charges whether you admit or deny and to give any explanation that will enable proper consideration to be given to the alleged offence. Your written explanation must reach the manager Human Resources within the 14 days. Failure to respond by the above date will be deemed to be an admission of the charges."

By memorandum dated 20 January 2006 addressed to MHR, the Grievor informed the Authority that he denied Count 1.

What happened after 20 January 2006 was the subject of conflicting evidence. The MHR gave evidence that she wrote to the Grievor (possibly delivered to the Grievor’s wife) that he was to attend a meeting with core management in Suva sometime in March or April 2006. However, there was no copy of the memorandum produced at the hearing. The MHR could not remember when she wrote the memorandum nor the date of the meeting. Although it was claimed notes were taken at the meeting, a copy of those notes was not produced at the hearing.

The MHR stated that the Grievor attended alone although she had told him in the memorandum that he could be accompanied by a representative from the Association. She stated that the Grievor denied the charges but she could not recall what explanation, if any, the Grievor gave.

She also maintained that apart from the very brief response in his memorandum dated 20 January 2006, the Grievor had not made any other written representation about the incidents to the Authority.

The Grievor denied that he was told about a meeting with core management. He denied that he attended a meeting with core management in Suva. He said that if he had attended such a meeting, he would have attended with a union representative.

The Grievor claimed that after he had sent his memorandum dated 20 January 2006, he received a call from the then Chief Executive Mr Simpson. Mr Simpson requested the Grievor to provide a further explanation about the matter.

The Grievor produced at the hearing a copy of a letter dated 22 March 2006. He claimed that he handed copies personally to both Mr Simpson and MHR in Mr Simpson’s Office.

It should be noted that there was no acknowledgment of receipt of this letter by the Authority. The Grievor could not offer any explanation as to why he hadn’t given a copy of the letter to the Association when the preliminary submissions were prepared with relevant documents attached in September 2007.

In any event, by memorandum dated 25 April 2006 from MHR the Grievor was advised that his employment was terminated. The memorandum stated:

"Pursuant to clause 8.2.7 of the Collective Agreement, the Authority is satisfied as to the truth of the charges against you.It has in reaching its decision referred to the charge, the reply made by yourself, your face to face representation before the Management and your opportunity to mitigate.

It is satisfied that the charges against you has been proved beyond all doubt. In accordance with clause 8.2.7 (iv) of the Collective Agreement, you are dismissed from being employee of the Authority with effect from Tuesday 25 April 2006.

- - "

It should be noted that in the dismissal letter there were references to both face to face representation and also a reply by the Grievor. On balance the Tribunal is satisfied that there is some truth in the evidence of both the Grievor and MHR. Both the Grievor and MHR had some difficulty in recalling relevant details and the differences in their evidence is to some extent explained by poor memory and the resulting attempt at reconstruction which is notoriously self-serving.

The MHR conceded in her evidence that the Grievor was not given an opportunity to mitigate as to penalty.

More importantly, she also conceded that the decision to find the charges proven was based on the material set out in the Report of the Independent Inquirer.

This, however, poses a problem for the Authority. The initial charge (as amended) was not established. The alternative charge was not supported by the findings of fact. The third charge, as worded by the Authority, alleged that the Grievor had "compelled" the employee to print out the duplicate certificate on the payment of the $4.00 fee.

The Tribunal has some concern about whether the Report contains any finding of fact which would support the allegation that the Grievor compelled Premila Wati to print the duplicate sticker. On this point, the Report at page 15 stated :

"Evidence showed that this employee (Premila Wati) issued a duplicate sticker to Dinesh despite the fact that he did not produce all the required papers. This is a serious breach of procedures, which should not be encouraged in the organization. It is suggested that she should be warned as deterrence to other employees."

It would seem unfair and unreasonable to have included such observations if the evidence had established that the Grievor had compelled the employee in the sense that he forced or obliged her to print the duplicate sticker.

Somewhat surprisingly, the authority did not take up the recommendation but instead transferred Ms Wati to another post. This, too would appear to indicate that Ms Wati was to some extent a willing participant in the procedural breach.

In any event, if the word "compelled" as used in the additional charge was supported by the evidence, it was a very mild form of compulsion. Furthermore the advantage or the gain involved the absence of insurance documents and a police report.

The Tribunal has no hesitation in concluding that whilst the facts, if accepted, amounted to misconduct, the offence certainly did not constitute serious misconduct such as would have entitled an employer to summarily dismiss an employee under section 28 of the Employment Act Cap 92.

The penalty of summary dismissal referred to in clause 8.2.7 (iv) of the Collective agreement can only be imposed by the Authority in accordance with the provisions of section 28 of the Employment Act. The common law right to summarily dismiss an employer is retained for serious misconduct which falls within one of the five circumstances stated in the section.

As a result the Tribunal has concluded that the summary dismissal was not justified and was unreasonable.

The Tribunal is also satisfied that the procedure was unfair in the sense that the Grievor was not given any opportunity to mitigate before the decision to summarily dismiss was taken.

As for the appropriate remedy, the Tribunal is satisfied that there was no evidence to suggest that the Grievor would not continue to be an effective member of the Authority’s team. However re-instatement is not appropriate as the Grievor has obtained permanent full time employment.

AWARD

The summary dismissal of the Grievor was unreasonable and unfair.

Re-instatement is not appropriate as the Grievor was confirmed in full time permanent employment on 13 August 2007 having commenced on probation on 12 February 2007.

The Grievor is to be paid the balance of pay owing to him on and from 8 August 2005 up to the date of his dismissal.

The Grievor is to be paid an additional sum of three months pay in respect of the unreasonable and unfair dismissal.

DATED at Suva this 26^th day of March 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL